NE v Pruckner

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop J
• Judgment Date: 10 August 2018
• Docket Number: File Number: SCA 4 of 2018
• Date: 10 August 2018

[2018] ACTSC 212

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop J

File Number: SCA 4 of 2018

NE

(Appellant)

and

Ainslie Pruckner

(Respondent)

Representation:

Counsel

J O'Keefe (Appellant)

M Kent (Respondent)

Cases Cited:

Pantorno v The Queen (1989) 166 CLR 466

R v Klickovic [2018] ACTSC 141

Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; 214 CLR 1

Stead v State Government Insurance Commission (1986) 161 CLR 141

Legislation Cited:

Crime (Sentencing) Act 2005 (ACT), ss 21, 22, 23

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Victims of Crime (Financial Assistance) Act 2016 (ACT), s 82

APPEAL — CRIMINAL LAW — Appeal from Magistrates Court — appeal against sentence — appeal against non-association order — whether magistrate accorded procedural fairness before imposing non-association order — non-association order having the effect of separating married couple — order not sought by any party or mentioned in submissions — denial of procedural fairness established — appellant resentenced

Decision:

See [29]

Mossop J

Introduction

1 This is an appeal from a decision of the ACT Magistrates Court on 10 January 2018. The appellant appealed the non-association order made by the magistrate pursuant to s 23 of the Crime (Sentencing) Act 2005 (ACT). At the hearing of the appeal, the Notice of Appeal was amended so as to challenge the whole of the sentence. The grounds of the appeal are that the magistrate failed to properly consider the relevant criteria for imposing a non-association order, that the magistrate did not provide procedural fairness to the parties before imposing the non-association order and that the non-association order was manifestly excessive in the circumstances. At the conclusion of the hearing, I made orders allowing the appeal and resentenced the appellant to a sentence which did not involve a non-association order. These are my reasons for doing so.

The proceedings below

2 The appellant was charged with common assault upon his wife. That offence occurred on 14 October 2017. The appellant had come home drunk, had entered the residence and become angry because he wanted money from his wife. He lunged towards her and grabbed her shirt with both hands and pushed her backwards into the front door. He pushed her again, causing her to fall back into a table that was in the lounge room. She felt immediate pain in her back and right knee and yelled out for the appellant to get away from her. She pushed him away from her, causing him to fall backwards onto a table inside the front door and hit his head on a wooden wall decoration. This caused a laceration to the back of his head.

3 He had a poor history in relation to domestic violence matters. In 2011 he had been sentenced for a common assault to a term of imprisonment of four months which was partially suspended. In 2016 he had been sentenced for contravening a protection order to a term of imprisonment for four months which was partially suspended. He also had a number of other convictions for common assault and a conviction for contravening a protection order for which he had received non-custodial sentences. The victim of all of these offences was his wife.

4 In New South Wales, he had drink driving offences as well as an offence of contravening an apprehended domestic violence order and stalking or intimidation. He was dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) which allows dismissal of a charge and conditional discharge of an offender where it is more appropriate to deal with the offender in accordance with the mental health legislation than otherwise according to law.

5 The pre-sentence report disclosed that the appellant had been in a relationship with the victim of the current offence for the past 15 years. It disclosed that he was the full-time carer for the victim who experiences physical and mental health issues. He was also the carer for two other people prior to being incarcerated. He received a Centrelink carer's payment. He used alcohol at risky or hazardous levels. He was assessed as being at a medium risk of general reoffending. He was assessed as suitable for a community service work condition.

6 Also tendered on the sentence was a letter that he wrote to the Court. Included in that letter was the following:

The reason that I writing to you your Honour is to acquaint you with events leading up to 14/10/17, that may have contributed to this incident, just recently my father pas[s]sed away from a battle with cancer.

About a year ago my Wife [EE] was raped by an ex-friend and an order [was] taken out [against] this ex-friend who also threatened to shoot my wife. We then offered a homeless person a room and he brought with him a lot of problems both financial, medical and personal he has run up a debt with ACT Housing of over $2,800 which my wife and myself will have two make good, he also conned my wife to take out a phone contract in her name for him last bill seen $10,000 not honoured. We have had people turn up at our door looking for him threatening to bomb the house reported to AFP his boyfriend (now in AMC) stole my wife's car plus other stuff, My wife suffers Bipolar and is semi medicated because we haven't been able to afford her medication because I was supporting 3 adults (including him) out of 1 wage, our centrelink pensions won't help with medication ($400 per mth x 15 years) because we are honest people and declared we are married so our pensions were halved some years ago.

I am horrified and ashamed that this has happened but as you can see it been a tough year, I do love my wife very much and very deeply your Honour and have supported her in all aspects of life both as a carer and husband over a 15 plus year period. I am desperate to change my life and have enrolled in anger management, drug and alcohol and also asked to receive counselling from Relationships Australia.

During this period I also cared for Ms [name redacted] who has a stoma and receives methadone, I have also cared for a terminal Gentleman Mr [name redacted] also the boarder with his problems and drug use reflected on his Doctors record you can see that I've been busy.

Your Honour I'm not trying to shift the Blame but beg for forgiveness from everyone concerned and to acquaint you with how hard life is for some people including me, I consider myself an honest man who loves his wife and family very deeply, and regrets the situation I find myself in not being able to support my wife or family.

I offer no excuses for my memory loss as I don't know what happened during the incidents of that day or how I received my injuries, but as I have said above and can't apologize enough for my disgusting and horrible behaviour.

7 The sentencing hearing in the Magistrates Court involved the tender by the prosecutor of the criminal history of the appellant as well as the pre-sentence report. Counsel for the appellant tendered a certificate of achievement in relation to his completion of the “First Steps to Anger Management Program” on 19 December 2017. Counsel also tendered the letter to which I have referred above. The prosecutor summarised the facts of the case. It does not appear that the statement of facts was formally tendered.

8 Counsel for the appellant addressed her Honour at some length in relation to the personal circumstances of the appellant. Counsel for the prosecution went through the criminal history and submitted:

This is a toxic relationship and if there is any question about whether the court has swung too far in coining the term what is family violence, this is a classic on all fours family violence relationship. It's not just one of those slept together two times, or been in a relationship on and off for six months. It's something that's embedded, it's something that's now become part of their relationship, and terms of imprisonment have not deterred, not specifically deterred. Despite the fact that these mitigating factors have highly likely not just popped up overnight in relation to these offences that your Honour has, they've clearly been in the sentencing magistrate's mind at the time back in 2003.

9 Her Honour gave her decision and reasons immediately after the conclusion of submissions. She imposed a sentence of two months imprisonment, reduced from three months on account of the plea of guilty. This reflected the time served prior to sentence. Her Honour also imposed a good behaviour order for a period of 12 months with various conditions.

10 At the conclusion of the explanation of the good behaviour order, her Honour said that she was going to make a non-association order. That is an order under s 23 of the Crimes (Sentencing) Act 2005. Sections 21, 22 and 23 of the Act provide:

21 Definitions—pt 3.4

In this Act:

non-association order means an order prohibiting an appellant from–

• (a) being with a named person, or attempting to be with the person; or

• (b) being with a named person or communicating in any way (including electronically) with the person, or attempting to be with the person or to communicate in any way (including electronically) with the person.

place restriction order means an order prohibiting an offender from being in, or within a stated distance of, a named place...